[Federal Register Volume 75, Number 4 (Thursday, January 7, 2010)]
[Proposed Rules]
[Pages 964-967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11]


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DEPARTMENT OF ENERGY

48 CFR Parts 928, 931, 932, 933, 935, 936, 937, 941, 942, 949, 950, 
951, and 952

RIN 1991-AB88


Acquisition Regulation: Subchapter E--General Contracting 
Requirements, Subchapter F--Special Categories of Contracting, and 
Subchapter G--Contract Management

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend the 
Department of Energy Acquisition Regulation (DEAR) Subchapters E--
General Contracting Requirements, F--Special Categories of Contracting, 
and G--Contract Management to make changes to conform to the FAR, 
remove out-of-date coverage, and to update references. DOE will 
separately propose rules for changes to parts 927 and 945, 
respectively. Today's proposed rule does not alter substantive rights 
or obligations under current law.

DATES: Written comments on the proposed rulemaking must be received on 
or before close of business February 8, 2010.

ADDRESSES: This proposed rule is available and you may submit comments, 
identified by DEAR: Subchapters E, F, and G and RIN 1991-AB88, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail to: [email protected]. Include: DEAR: 
Subchapters E, F and G and RIN 1991-AB88 in the subject line of the 
message.
     Mail to: U.S. Department of Energy, Office of Procurement 
and Assistance Management, MA-611, 1000 Independence Avenue, SW., 
Washington, DC 20585. Comments by e-mail are encouraged.

FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by 
e-mail, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Approval by the Office of the Secretary of Energy

I. Background

    The objective of this action is to update the existing Department 
of Energy Acquisition Regulation (DEAR). Subchapters E, F, and G have 
sections that need to be updated to conform to the FAR. None of the 
proposed changes are substantive or of a nature to cause any 
significant expense for DOE or its contractors.

II. Section-by-Section Analysis

    Changes are proposed to DEAR parts 928, 931, 932, 933, 935, 936, 
937, 941, 942, 949, 950, 951, and 952. No changes are proposed for DEAR 
parts 927, 929, 930, 934, 938, 939, 940, 943, 944, 945, 946, 947, and 
948.
    DOE proposes to amend the DEAR as follows:
    1. Section 932.501-2 is amended in paragraph (a)(3) to reflect 
current procedures to state that all requests for unusual progress 
payments shall be sent to the DOE or the NNSA Senior Procurement 
Executive to approve or deny.
    2. Subpart 932.6 is amended to update the DEAR to conform with FAR 
subpart 32.6 which was revised by Federal Acquisition Circular 2005-027 
effective October 18, 2008.
    3. Section 935.010 is amended by revising paragraphs (c) and (d). 
The report process has been changed to an electronic submission using 
the DOE Energy Link System (E-Link) at http://www.osti.gov/elink. The 
contracting officer shall require the contractors to use E-Link to 
submit an announcement record with each report.
    4. Part 936 redesignates 936.202 to 936.202-70.
    5. Part 937 is revised to add a new subpart, Subpart 937.2--
Advisory and Assistance Services and section 937.204 Guidelines for 
determining availability of personnel. Sections 937.204(a), (b), (d) 
and (e) are added to conform to FAR 37.204 to provide the DOE 
guidelines for determining availability of sufficient personnel with 
the requisite training and capabilities to perform the evaluation or 
analysis of proposals. It also clarifies the DOE officials responsible 
for making the determinations prescribed at FAR 37.204 (a), (b), (d) 
and (e).
    6. Section 941.201-70 is amended to update the DOE Order reference 
by removing the remainder of the sentence after the second ``FAR'' and 
adding in its place ``part 41 and the Department of Energy (DOE) Order 
430.2B, Departmental Energy, Renewable Energy and Transportation 
Management, or its successor.''
    7. Section 942.803 is amended at paragraph (c) by removing ``as 
discussed in 942.70 Audit Services'' which is no longer a subpart.
    8. Section 949.101 is revised to add ``Senior'' before 
``Procurement Executive.'' to conform the use of the Procurement 
Executive title with the FAR.
    9. Subpart 949.5 is removed and reserved. There is no longer a need 
for a DEAR termination clause for Architect-Engineer contracts.
    10. Section 951.102 paragraph (e)(4) is amended to remove the 
``(iii)'' in the paragraph numbering.
    11. Section 952.247-70 is amended to remove repetitive language.
    12. The rule text is amended as noted in the table at paragraph 16, 
by removing ``FAR'' or ``FAR part'' and adding ``48 CFR'' or ``48 CFR 
part'' or by updating other CFR citations. Section 931.205-47(h)(1) is 
amended by changing the capitalization of the word ``part'' in two 
places. Section 952 has

[[Page 965]]

several changes in punctuation at 952.235-71 and 952.250-70.

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this rule is not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs (OIRA) of the 
Office of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the United 
States Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or if it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this rule meets the relevant standards of Executive 
Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
an agency prepare an initial regulatory flexibility analysis for any 
regulation for which a general notice or proposed rulemaking is 
required, unless the agency certifies that the rule, if promulgated, 
will not have a significant economic impact on a substantial number of 
small entities (5 U.S.C. 605(b)). This rule updates references in the 
DEAR that apply to public contracts and does not impose any additional 
requirements on small businesses. Today's proposed rule does not alter 
any substantive rights or obligations and, consequently, today's 
proposed rule will not have a significant cost or administrative impact 
on contractors, including small entities. On the basis of the 
foregoing, DOE certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, DOE has not prepared a regulatory flexibility analysis for 
this rulemaking. DOE's certification and supporting statement of 
factual basis will be provided to the Chief Counsel for Advocacy of the 
Small Business Administration pursuant to 5 U.S.C. 605(b).

D. Review Under the Paperwork Reduction Act

    This proposed rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Existing burdens associated with the collection of certain 
contractor data under the DEAR have been cleared under OMB control 
number 1910-4100.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this proposed rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
DOE's regulations (10 CFR part 1021, subpart D) implementing the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.). Specifically, this proposed rule is categorically excluded from 
NEPA review because the amendments to the DEAR are strictly procedural 
(categorical exclusion A6). Therefore, this proposed rule does not 
require an environmental impact statement or environmental assessment 
pursuant to NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined the proposed rule and has determined that it 
does not preempt State law and does not have a substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104[boxh]4) 
generally requires a Federal agency to perform a written assessment of 
costs and benefits of any rule imposing a Federal mandate with costs to 
State, local or tribal governments, or to the private sector, of $100 
million or more. This rulemaking proposes changes that do not alter any 
substantive rights or obligations. This proposed rule does not impose 
any mandates.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rulemaking or policy that may 
affect family well-being. This rulemaking will have no impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355, 
(May 22, 2001), requires Federal agencies to prepare and submit to 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to

[[Page 966]]

promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
Today's proposed rule is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed the 
proposed rule under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

K. Approval by the Office of the Secretary of Energy

    Issuance of this proposed rule has been approved by the Office of 
the Secretary.

List of Subjects in 48 CFR Parts 928, 931, 932, 933, 935, 936, 937, 
941, 942, 949, 950, 951, and 952

    Government procurement.

    Issued in Washington, DC, on December 16, 2009.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Department 
of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear 
Security Administration.

    For the reasons set out in the preamble, the Department of Energy 
is proposing to amend Chapter 9 of Title 48 of the Code of Federal 
Regulations as set forth below.
    1. The authority citations for parts 928, 931, 932, 933, 935, 936, 
941, 942, and 951 continue to read as follows:

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

PART 932--CONTRACT FINANCING

    2. Section 932.501-2 is amended by revising paragraph (a)(3) to 
read as follows:


935.501-2  Unusual progress payments.

    (a)(3) For DOE, the Head of the Contracting Activity shall forward 
all requests which are considered favorable, with supporting 
information, to the DOE Senior Procurement Executive, who, after 
coordination with the Chief Financial Officer, Headquarters, will 
approve or deny the request. For NNSA, the NNSA Senior Procurement 
Executive will coordinate with the NNSA Chief Financial Officer before 
approving or denying the request.
* * * * *


932.605  [Redesignated as 932.602]

    3. Section 932.605 is redesignated as 932.602 and newly 
redesignated 932.602 is amended by:
    a. Revising the section heading as set forth below; and
    b. Removing the paragraph designation ``(b)''.
    The revision reads as follows:


932.602  Responsibilities.

* * * * *

PART 935--RESEARCH AND DEVELOPMENT CONTRACTING

    4. Revise section 935.010 to read as follows:


935.010  Scientific and technical reports.

    (c) All research and development contracts which require reporting 
of research and development results conveyed in scientific and 
technical information (STI) shall include an instruction requiring the 
contractor to submit all STI, including reports and notices relating 
thereto, electronically to the U.S. Department of Energy (DOE), Office 
of Scientific and Technical Information (OSTI), using the DOE Energy 
Link System (E-link) at http://www.osti.gov/elink. The phrase ``reports 
and notices relating thereto'' does not include reports or notices 
concerning administrative matters such as contract cost or financial 
data and information. The DOE Order 241.1B Scientific and Technical 
Information Management, or its successor version, sets forth 
requirements for STI management.
    (d) As prescribed in DOE Order 241.1B, the contracting officer 
shall ensure that the requirements of the attendant Contractor 
Requirements Document are included in applicable contracts.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


936.202  [Redesignated as 936.202-70]

    5. Section 936.202 is redesignated as 936.202-70 and the section 
heading is revised to read as follows:


936.202-70  Specifications charges.

* * * * *
    6. The authority citations for parts 937 and 949 are revised to 
read as follows:

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

PART 937--SERVICE CONTRACTING

    7. Add a new subpart 937.2, consisting of section 937.204, to read 
as follows:

Subpart 937.2--Advisory and Assistance Services


937.204  Guidelines for determining availability of personnel.

    (a) The determination, that there is sufficient DOE personnel with 
the requisite training and capabilities for each evaluation or analysis 
of proposals, shall be determined in accordance with 915.207-
70(f)(2)(i).
    (b) If it is determined that there is no such DOE personnel 
available, then other Federal agencies may have the required personnel 
with the requisite training and capabilities for the evaluation or the 
analysis of proposals. The determination, to use employees of other 
Federal agencies for the evaluation or analysis of proposals, shall be 
in accordance with 915.207-70(f)(2)(ii).
    (d) The determination, to employ non-Federal evaluators or 
advisors, shall be determined in accordance with 915.207-70(f)(3).
    (e) The determination that covered personnel are unavailable for a 
class of proposals, necessitating employment of non-Federal evaluators 
or advisors, shall be determined in accordance with 915.207-70(f)(3).

PART 941--ACQUISITION OF UTILITY SERVICES

    8. Section 941.201-70 is revised to read as follows:


941.201-70  DOE Directives.

    Utility services (defined at 48 CFR 41.101) shall be acquired in 
accordance with 48 CFR part 41 and the Department of Energy (DOE) Order 
430.2B, Departmental Energy, Renewable Energy and Transportation 
Management, or its successor.

[[Page 967]]

PART 942--CONTRACT ADMINISTRATION


942.803  [Amended]

    9. Amend section 942.803 by revising paragraph (c)(1) in the last 
sentence by removing the phrase ``, as discussed in 942.70 Audit 
Services''.

PART 949--TERMINATION OF CONTRACTS


949.101  [Amended]

    10. Section 949.101 is amended by adding ``Senior'' before 
``Procurement Executive''.

Subpart 949.5 [Removed and Reserved]

    11. Subpart 949.5 is removed and reserved.

PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

    12. The authority citation for part 950 continues to read as 
follows:

    Authority:  42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.

PART 951--USE OF GOVERNMENT SOURCES BY CONTRACTORS


951.102  [Amended]

    13. Section 951.102 is amended by revising the paragraph 
designation ``(e)(4)(iii)'' to read ``(e)(4)''.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    14. The authority citation for part 952 is revised to read as 
follows:

    Authority:  42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.

    15. Section 952.247-70 is amended by:
    a. Revising the date of the clause to read as set forth below; and
    b. Removing ``or its successor Official Foreign Travel, or any 
subsequent version of the order'' in the clause and adding in its place 
``Official Foreign Travel, or its successor''. The revision reads as 
follows:


952.247-70  Foreign travel.

* * * * *

FOREIGN TRAVEL (XXX 20XX) [INSERT ABBREVIATED MONTH AND YEAR 30 DAYS 
AFTER DATE OF FINAL RULE PUBLICATION]
* * * * *

PARTS 928, 931, 932, 933, 936, 937, 941, 942, 950, 951, AND 952 
[AMENDED]

    16. In the table below, for each section indicated in the left 
column, remove the word indicated in the middle column from where it 
appears in the section, and add the word in the right column:

 
------------------------------------------------------------------------
           Section                   Remove                  Add
------------------------------------------------------------------------
928.101-1...................  ``FAR''.............  ``48 CFR''
928.301.....................  ``FAR Part''........  ``48 CFR part''
931.102 in 2 places.........  ``FAR''.............  ``48 CFR''
931.102.....................  ``FAR Part 31''.....  ``48 CFR part 31''
931.205-32(a)...............  ``FAR''.............  ``48 CFR''
931.205-47(h)(1), in the      ``29 CFR Part 24,''.  ``29 CFR part 24,''
 Employee whistleblower
 action definition.
931.205-47(h)(1), in the      ``10 CFR Part 708''.  ``10 CFR part 708''
 Employee whistleblower
 action definition.
932.006-4(a)................  ``FAR''.............  ``48 CFR''
932.803(d)..................  ``FAR''.............  ``48 CFR''
932.7004-1 in 3 places......  ``FAR''.............  ``48 CFR''
932.7004-3(a)...............  ``FAR''.............  ``48 CFR''
933.103(k)..................  ``FAR''.............  ``48 CFR''
933.104(b)..................  ``FAR''.............  ``48 CFR''
933.104(c)..................  ``FAR''.............  ``48 CFR''
933.104(g)..................  ``FAR''.............  ``48 CFR''
933.106(a)..................  ``FAR''.............  ``48 CFR''
936.602-10(a)(8)............  ``FAR''.............  ``48 CFR''
936.609-3...................  ``FAR''.............  ``48 CFR''
936.7100....................  ``FAR Part''........  ``48 CFR part''
937.7040....................  ``FAR''.............  ``48 CFR''
942.704(b) in 2 places......  ``FAR''.............  ``48 CFR''
942.705-1(b)(1).............  ``FAR''.............  ``48 CFR''
950.7003(a) in the first      ``(DOE)''...........  ``DOE''
 sentence.
951.102(a)..................  ``FAR Part''........  ``48 CFR part''
951.102(a)..................  ``DOE PMR 41 CFR 109- ``DOE PMR 41 CFR
                               26''.                 109''
952.233-2 in the              ``FAR''.............  ``48 CFR''
 introductory text.
952.233-4(a)................  ``FAR''.............  ``48 CFR''
952.233-4(b)................  ``FAR''.............  ``48 CFR''
952.235-71(b)(1)............  ``warranted;''......  ``warranted.''
952.250-70(e)(2)............  ``which:''..........  ``which--''
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[FR Doc. 2010-11 Filed 1-6-10; 8:45 am]
BILLING CODE 6450-01-P